Case ID:167803

Republic v Joseph Kobia & 3 others [2020] eKLR

Case Metadata

Case Number:

Criminal Case 7 of 2014

Parties:

Republic v Joseph Kobia Alias Karwamba, James Kiunga Ntoithilai, Godfrey Karauri Kanti & Simon Mutua Munoru

Date Delivered:

10 Dec 2020

Case Class:

Criminal

Court:

High Court at Meru

Case Action:

Judgment

Judge(s):

Alfred Mabeya

Citation:

Republic v Joseph Kobia & 3 others [2020] eKLR

Court Division:

Criminal

County:

Meru

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO. 7 OF 2014

REPUBLIC ................................................................... PROSECUTOR

VERSUS

JOSEPH KOBIA ALIAS KARWAMBA..........................1

ST

ACCUSED

JAMES KIUNGA NTOITHILAI ................................... 2

ND

ACCUSED

GODFREY KARAURI KANTI .......................................3

RD

ACCUSED

SIMON MUTUA MUNORU ........................................... 4

TH

ACCUSED

J U D G M E N T

1. The accused persons were charged with the offence of Murder contrary to

section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya

.

2. The particulars of the offence were that on 24/1/2014 at Ngutu Sub Location in Tigania East District within Meru County they jointly and with others not before court, murdered

JOSEPH MUTHAMIA.

3. The prosecution called six (6) witnesses in support of its case whereas the defence called eight (8) witnesses.

4. The prosecution case was that on the material day at about 8.00am, the deceased was with his two wives

Jesinta Kanjira (Pw1)

and

Julia Ncabani (Pw2)

in his homestead when a mob attacked him and fatally injured him.

Pw1

and

Pw2

told the Court that the attackers numbered about 10. They stated that they identified all the four accused as being part of the mob that attacked the deceased with a machete popularly known in the area a C-Line and jembe handles.

5. The two witnesses recalled of a land dispute between the deceased and the father of the 4

th

accused. They immediately reported the incident at Mikinduri Police Station.

6.

Gedion Miriti (Pw3),

a son-in law to the deceased, was also within the homestead when the deceased was attacked. He was in the house of

Pw2

when he heard her scream. When he went outside, he saw the deceased on the ground and a crowd of about ten (10) people assaulting him. One of the attackers by the name

Sebastian Miriti

saw him and ordered that he also be attacked. He run away for dear life and hid behind a tree. He would only re-emerge later to find that the deceased’s head had been severed and his index finger cut.

7. He went to Mikinduri Police Station and found that the incident had been reported by

Pw1 and Pw2

. While he identified the 1

st

, 3

rd

and 4

th

accused as having been in the mob, he did not see the 2

nd

accused among the attackers.

8.

Pw4 Dr. James Kisilu

produced the post mortem report which revealed that the deceased’s skull was fractured with a deep cut on the anterior neck. Internally, the trachea and anterior blood vessels were severed. The cause of death was found to be severe haemorrhage secondary to severed vessels.

9.

P.C. Benard Korir (Pw5)

investigated the case. He recalled visiting the scene that morning accompanied by the OCS, CIP Kafulo, PC Owando and the Station driver. They found the body of the deceased a few metres from his house with injuries on the head neck and hand. They interviewed witnesses who told them that the deceased was attacked by a mob of about ten (10) people.

10. In his view, the attackers had organised and planned the attack. After 4 days, he arrested the 1

st

to 3

rd

accused at Ngutu Market on being identified by the relatives of the deceased. The 4

th

accused was arrested by the administration police.

11. It was his further testimony that the deceased had a bad reputation in his village. He had been accused of land grabbing. He was killed by the villagers. They were angry because of the land grabbing but according to him, that did not justify the murder.

12.

A1 Japheth Kobia alias Karwamba

testified that on the material day, he attended a meeting at

Kiarao Primary School

where he delivered a speech. That it was only at 12:00 noon that he heard the assistant chief talking to the OCS about the murder of the deceased. He told the Court that he did not have any reason to murder the deceased as he did not own any land in

Giitho.

He resided in

Amugaa

which is about 8 to 10 km from where the deceased lived and was murdered. According to him, the relatives of the deceased had framed him of the offence. He denied the existence of any land dispute between him and the deceased.

13.

A2 James Kiunga

testified that on the material day, he was at his farm with his wife when a daughter of the deceased by the name

Kambura

came and informed him that the deceased had been killed. He knew nothing about the killing of the deceased.

14.

A3 Geodfrey Karauri

testified that on the material day, he was at his home when

Reuben

, a son of the deceased, called and informed him they had been attacked and his father, the deceased, had been killed. He sent

Rose Kambura

to go and inform the 2

nd

accused of that fact. He had nothing to do with the deceased’s death.

15.

A4 Simon Mutua Munoru

the 4

th

accused testified that on the material day, he was in his farm with about 20 workers harvesting tea leaves. He was seen at his farm by

Pastor Solomon M’Mailu

who was going to Karagu Primary School where his wife was also a committee member. His father had land at

Giitho

measuring about eight (8) acres. After his arrest, the children of the deceased had invaded the land and were to-date using in occupation therof. The family of the deceased want to fix him in this case so that they can grab his father’s said land.

16.

Dw5 Julius Kamunde

testified that he is a son of the deceased. He stated that his father was not in good terms with the villagers. At one time, the villagers had chased his whole family from their home, burnt their 10 homesteads, forcing the family to go and reside at the home of the 1

st

accused. It is then that the villagers killed the father of the 1

st

accused for harbouring the deceased.

17. On the 24/1/2014, he was at their homestead when the residents of

Giitho

invaded their homestead. He together with

Pw1

and

Pw2

, ran away leaving the deceased behind whom they killed.

18.

Dw6 Kirimi Joseph Naaman,

a neighbour of the deceased, was outside his house on the material day when he saw a large crowd invade the deceased’s homestead and attack him. The accused were not among the attackers. After the mob had killed the deceased, the police came but they did not conduct any investigations. Later, the wives of the deceased approached him to help them testify against the accused with a promise of land. He declined as they wanted him to lie against the accused.

19.

Dw7 Susan Kananu,

a Deputy Head teacher at

Kairao Primary School

testified that on the material day, she passed by the house of the 4

th

accused and found him feeding his cattle. She proceeded to her school meeting which was attended by the wife of the 4

th

accused and the 1

st

accused. She produced minutes of the meeting.

20.

Dw8 Julius Muriuki Ibuku,

the Assistant Chief of

Ngutu Sub location, Githo Location, Igembe Central

testified on behalf of the accused persons. He told the court that the deceased was a mysterious person. As at the time of his demise, over ten (10) arrest warrants had been issued against him pertaining incidents of land grabbing and stealing. That the deceased and his sons were notorious with theft, abduction and rape of young girls in the village. Their bad conduct had led the villagers to demonstrate whereby the County Commissioner intervened. With the intervention, the villagers of

Giitho

were agitated as the problem had not been resolved.

21. That the deceased was killed by the irate villagers who had failed to get any assistance from the police against the deceased and his family. That on the material day, Dw8 was only called and informed that the deceased had been killed by the villagers of Giitho.

22. The accused face a charge of murder. For the prosecution to secure a conviction on the charge of murder, it has to prove beyond reasonable doubt the four three ingredients that compromise the charge of murder. These are; the fact of death, the cause of death, proof that the death of the deceased was the direct consequence of an unlawful act or omission on the part of the accused and that the said unlawful act or omission was committed with malice afterthought.

23.

Pw1, Pw2 and Pw3

were with the deceased on the material day. They told the Court how the deceased was viciously attacked and died.

Pw4 Dr. James Kisilu

produced the post mortem report which showed that the cause of death was due to severe haemorrhage secondary to severed vessels. The fact and the cause of death of the deceased was therefore proved to the required standard.

24. The next issue is whether the death of the deceased was the direct consequence of an unlawful act or omission on the part of the accused persons.

25. In

Republic v Ismail Hussein Ibrahim [2018] Eklr

, the court cited the case of

United States V Smith, 267 F. 3d 1154, 1161 (D.C. Cir. 2001) (Citing In re Winship, 397 U. S. 358, 370, 90 S. Ct. 1068, 1076 (1970) (Harlan, J., concurring)

wherein it was stated: -

“The burden is upon the state to prove beyond reasonable doubt that the defendant is guilty of the crime charged. It is a strict and heavy burden. The evidence must overcome any reasonable doubt concerning the defendant’s guilt, but it does not mean that a defendant’s guilt must be proved beyond all possible doubt. A reasonable doubt is a fair, actual and logical doubt based upon reason and common sense. A reasonable doubt may arise either from the evidence or from a lack of evidence. Reasonable doubt exists when you are not firmly convinced of the defendant’s guilt, after you weighed and considered all the evidence. A defendant must not be convicted on suspicion or speculation. It is not enough for the state to show that the defendant is probably guilty. On the other hand, there are very few things in this world that we know with absolute certainty. The state does not have to overcome every possible doubt. The state does not have to overcome every possible doubt. The state must prove each element of the crime by evidence that firmly convinces each of you and leaves no reasonable doubt. The proof must be so convincing that you can rely and act upon it in this matter of the highest importance. If you find there’s a reasonable doubt that the defendant is guilty of the crime, you must give the defendant the benefit of that doubt and find the defendant not guilty of the crime under consideration.”

26. I have considered the evidence tendered by both the prosecution and the defence.

Pw1, Pw2 and Pw3

were the eye witnesses. They testified how a group of about 10 people descended on the homestead of the deceased and fatally attacked him. They alleged to have seen the 4 accused in the company of the attacking party. All the accused gave defences of alibi.

27. I found the prosecution evidence to be shaky. None of the eye witnesses mentioned any of the accused in the first report to the police. In her statement to the police,

Pw1

stated that when she saw the deceased being pursued, she run away. When she returned later with other villagers, she found that the attackers had fled and her husband dead. If she fled on seeing the attackers pursue her husband, it is not possible for her to have seen those who assaulted the deceased as she narrated in detail in Court. The testimony she gave in court on the events of the day, must have been a well thought out rehearsed version of what she had told the police. The Court did not believe her.

28.

Pw3

was also an eye witness. His testimony in Court was that he saw the accused in the company of the attackers. However, in his statement to the police, he gave the names of the attackers as,

Simeon Munyara, Sebastian Miriti, Isaya Kariti and David Kariti.

29. Further, the three prosecution witnesses gave contradictory evidence as to the weapons used. The weapons ranged from pangas, C-Line, slashers, walking sticks, folk handle and jembe handles without any consistency.

30. As regards the investigations, they were shady to say the least. It was clear that the neighbours were not interviewed. The area Assistant Chief appeared and testified in favour of the accused. It came out clearly that the deceased and his family was a notorious one. It was a marked family in the village because of the atrocities he and his family had meted out to the villagers.

31. I found the independent evidence of

Dw5, Dw6, Dw7

and

Dw8

to be firm consistent and believable. It came out clear that because of the bad reputation of the deceased and his family, his brother, the father of the 1

st

accused was killed in 2005. The security agents in the area were complacent and could not take action against him and his family. This is what must have infuriated the villagers into taking the law into their hands. It was very unfortunate that a life was lost in those circumstances instead of the police taking action to prevent the same.

32. Whether or not the deceased was of bad character did not matter. He should not have died the way he did. The issue is, were the accused involved in the attack. The evidence on record shows that the accused were not residents of

Giitho Village.

They hail from

Amugaa Village

which is said to be about 8 to 10 kilometres away.

33. Further, evidence shows that those who attacked the deceased’s homestead were from

Giitho Village,

having been emboldened by the statement of the area police that,

‘if the government was unable to deal with the deceased, the villagers should not’.

34. The accused gave credible and reasonable alibi. Minutes of the meeting which the 1

st

accused attended were produced. Independent witnesses who saw the accused far away from the scene appeared and testified on their behalf. Their evidence was consistent, firm and unchallenged. I believed the defence evidence.

35. I have given due regard of the evidence of both parties. I have considered the history and the character of the deceased, that of his sons and his wives. I saw the two wives of the deceased testify. I did not believe their testimony. Their Assistant Chief did not have any kind words regarding them. He had no interest in the case other than of that of an area administrator. The neighbour of the deceased narrated how the prosecution witnesses had approached him to testify on their behalf so as to get an unjust benefit out of the land of the 4

th

accused.

36. What came out clearly was that the family of the deceased has an issue with the 4

th

accused regarding some land belonging to the 4

th

accused’s father. It was alleged that after he was arrested, the family of the deceased invaded that land and occupied the same. The evidence against him may be intended to have him behind bars permanently to allow them peaceful occupation thereafter.

37. In this regard, the third ingredient was not proved to the required standard.

38. Having found no evidence to connect the accused to the unlawful act that resulted in deceased’s death, it would be futile to delve into the issue of malice aforethought.

39. Consequently, it is irresistible to hold that the state failed to prove its case beyond reasonable doubt. It failed to proof its case against any of the accused. I find all the accused not guilty of the offence of murder and are all acquitted.

Orders accordingly.

SIGNED

at Nairobi.

A. MABEYA, FCIArb

JUDGE

DATED

and

DELIVERED

at Meru this 10

th

day of December, 2020.

JUDGE